Transparency advocates laud new SEC rules on foreign business operations

PC(USA)-backed ‘Publish What You Pay’ principles adopted in split votes

August 24, 2012

LOUISVILLE

One of two new rules requiring transparency in the oil, gas and mining sectors, as well as in supply chains for minerals used in high-tech gadgets is getting louder praise than the other.

The new rules passed on tight votes by the Securities and Exchange Commission  on Aug. 22. Both are largely being recognized as movement toward curbing abuses in resource-rich nations when dollars are siphoned off to a corrupt few.

The new rules are known as the “conflict minerals” provision (Section 1502) and principles tied to the Publish What You Pay (PWYP) campaign (Section 1504), an international effort endorsed by the 2008 General Assembly of the Presbyterian Church (U.S.A.).

The goal of the transparency legislation is to make foreign governments more accountable to citizens by making public their payments from extractive companies to governments, both abroad and in transactions involving federal land in the U.S., if the companies are registered on U.S. stock exchanges.

The intent of the conflict minerals legislation is to disclose whether minerals used in electronic products are obtained in the Democratic Republic of Congo (DCR) or other nearby countries, since mineral wealth fuels horrendous armed conflict there.

Long ties to partners in conflict-ridden Central Africa and in other resource-rich nations where millions are siphoned off for corrupt purposes and for fueling conflict compelled the Presbyterian Church (U.S.A.) to be a visible witness for both pieces of legislation addressed by the SEC.

While the new sets of rules ― both more than 200 pages long ― are being studied by analysts, the vote on transparency provisions is being hailed confidently as a first step toward setting a global standard that aims to bolster civil society in nations troubled by the “resource curse,” where high levels of corruption, violence and social instability go hand-in-hand with outrageous mineral wealth and consign roughly 3.5 billion people to poverty.

Backers of the “conflict minerals” provisions were still reviewing more than 300 pages of regulations and, while lauding the SEC’s action, some were more cautious than others in their evaluation.

Presbyterians in more than 70 presbyteries worked for passage of the PWYP principles during a two-year campaign coordinated by the Presbyterian Hunger Program and its Cameroonian partner, RELUFA, which monitors the practices of oil companies in Cameroon and Central Africa.

Members of the PC(USA)’s Congo Mission Network, a grassroots effort among congregations, presbyteries and other entities in partnership with Presbyterians in the Democratic Republic of Congo pushed for the “conflict minerals” legislation to be passed and implemented.

PC(USA) ties with the Congolese church date back to 1891. Today, the Presbyterian Church of the Congo exceeds 2 million members ― larger than the PC(USA).

The two small PWYP provisions were included in the massive Dodd-Frank Wall Street Reform and Consumer Protection Act, but business lobbies argued that the additional reporting requirements were too costly to implement and too risky in a competitive market ― despite arguments leveled by human rights groups, churches and such vocal allies as Bill Gates and George Soros.

Both enable investors to assess risk in investments and to provide investors with information to make adequately informed choices about what their dollars finance, which is why the PWYP coalition and the PCUSA pushed hard for project-level reporting rather than aggregate numbers that encompass a corporation’s work in a country.

The 2-1 SEC vote ― with two commissioners recusing themselves because of industry ties ― on Section 1504 granted no exemptions for “confidential” information and requires reporting by companies investing in projects that cost $100,000 or more, which is a wide sector.

The European Union is currently debating legislation that, if approved, will incorporate additional extractive companies and give even broader coverage.

The U.S. regulations cover about 90 percent of internationally operating oil companies and many of the top international mining companies, according to Oxfam America, an international relief and development organization that filed a lawsuit against the SEC for its failure to put regulations forward in a timely way.

Such U.S. companies such as ExxonMobil and Chevron are covered by the new regulations, as well as foreign companies, such as BP and Shell, and some companies from emerging markets in China, India, Brazil and Russia.

SEC staffers said the initial cost of compliance will range from $44 million to $1 billion industry-wide and continuing compliance will range from $200-400 million annually.

The transparency initiative is considered by experts to be an important component to gathering information sought by proponents of legislation on “conflict minerals.”

The 3-2 vote on Section 1502 requires large extractive companies to explore their own supply chains for tantalum, tin, gold and tungsten. It does not exclude small-to-medium-sized companies, although the industry lobby opposed such broad application. I

f companies have reason to believe their minerals may originate in the DCR, they will have to research the source and file a public report with the SEC, according to an article in The Hill, a Capitol Hill newspaper, on Aug. 22.  If a company cannot verify that its minerals are conflict-free, it will have to provide details of its inquiry, itemize products that rely on the minerals and list where they were processed.

The SEC does not have the power to punish companies that purchase minerals in the DRC, however.

SEC staffers estimated in the hearing that compliance with the new rules for Section 1502 will cost companies $3-4 billion industry-wide initially and between $206-609 annually.

Some questions still linger about the SEC actions.

Critics of the “conflict minerals” provision object to two-to-four-year delays in reporting on the mineral supply chain, depending upon company size. Experts are still assessing the impact of other regulations in the document.

SEC Commissioner Luis A. Aguilar quotes former U.S. Supreme Court Justice Brandeis’ line: “Sunshine is the best of disinfectants,” while arguing for full and fair disclosure as “one of the cornerstones of the federal securities framework.”

Aguilar said the rule-making effort ran for more than 25 months and included “extensive public outreach, thoughtful deliberation and rigorous economic analysis,” as well as comment from corporations, industry, professional associations, U.S. and foreign government officials, academics and individual and institutional investors.

Alexa Smith is associate for Joining Hands Against Hunger, a ministry of the Presbyterian Hunger Program.

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